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>> Tuesday, February 04, 2014

The damnably difficult thing about all of this, of course, is that you
can't presume that both are innocent at the same time. One of them must
be saying something that is not true. But "he said, she said" doesn't
resolve to "let's start by assuming she's lying," except in a rape
culture, and if you are presuming his innocence by presuming her
mendacity, you are rape cultured. It works both ways, or should: if one
of them has to be lying for the other to be telling the truth, then
presuming the innocence of one produces a presumption of the other's
guilt. And Woody Allen cannot be presumed to be innocent of molesting a
child unless she is presumed to be lying to us. His presumption of
innocence can only be built on the presumption that her words have no
credibility, independent of other (real) evidence, which is to say, the
presumption that her words are not evidence. If you want to vigorously
claim ignorance–to assert that we can never know what happened, in that
attic–then you must ground that lack of knowledge in the presumption
that what she has said doesn’t count, and we cannot believe her story.

The damnably difficult thing, actually, is that you can all-too-easily presume that two people telling diametrically opposed stories both believe they're recounting actual events. That one of those accounts might not jibe with what a third party would have observed if they'd been there, or might not accord with whatever consensual reality might be agreed to by a dozen observers, or might not accord with other evidence, doesn't mean that a party is "lying" in any meaningful sense of the word.

Woody Allen is a creep,* but I have my doubts about the accusations that have been made by his ex-girlfriend, Mia Farrow; his daughter, Dylan; and other estranged family members. That doesn't mean accusing Dylan Farrow of being a "liar"--indeed, much like blogger Chez Pazienza, I think Farrow believes what she's written and said; I'm just not sure that what she's saying is objectively true, to whatever extent anything is objectively true. (We could have a nice little ontological debate about how much of reality is objective and how much of it is made up of consensual subjectivity, but I'm not in a coffee shop with a cuppa and some decent light fusion playing in the background.) I can very easily say I have no idea what, if anything happened between them, and that it's possible both are innocent: that Woody Allen didn't molest Dylan Farrow, but Dylan Farrow sincerely believes that he did. It's possible she'sboth honest and wrong.

That happens quite a lot. The brain isn't a mechanical recording device that absorbs input and locks it into a physical form like a stylus carving an acoustic vibration into one of Edison's wax cylinders where it can be reproduced and duplicated over and over again. The brain is a piece of charged meat steeped in a chemical brew--in most ways, it resembles a pot roast more than it does a VCR, despite our chronic insistence on treating it more like the latter. A pot roast that is still in the oven, no less, undergoing constant physical changes over time in response to external stimuli. Just don't eat it, you'll get kuru.

I have had arguments with friends and family members over things they or I happen to remember. My mother has frequently insisted we saw Star Wars in 1976, a year before the copyright office thinks it was released. I have never admitted to my father that a family vacation we took when I was a teenager happened the year he said it did and not the year I clearly remember it, despite having gone over it in my mind and concluded he must be objectively right (or more right); perhaps more interestingly and relevant to the topic at hand, even though I'm intellectually certain he's probably right (or more right), my memory continues to place the trip in what is almost certainly the wrong year and wrong age. Similarly, my friends have photographs of events and gatherings that my brain claims never happened or happened differently or involved different participants or other locations; and no, alcohol wasn't involved (nor other controlled substances), and I think it's extremely improbable they would have bothered creating an extremely convincing artifact just to screw with me, though one can do amazing things with computers these days.

I have bad meat in my can. So do you. Or it's great meat: it's probably better to observe that it's really amazing what a brain can pull off when it evolved to perform entirely different tasks that have nothing to do with the things we ask of it. There's probably no reproductive advantage in being able to recite the Gettysburg Address from memory, nor in being able to name all fifty American state capitols, or in knowing even one digit of pi.

It's just that this bad--or wonderful--meat can get us into trouble. When Jennifer Thompson mistakenly identified Ronald Cotton as her rapist in 1984, she wasn't acting from malice or being dishonest: Thompson's efforts to bring her assailant to justice were heroic and heart-wrenching. Unfortunately, the tasks of identifying another person seen at intimate proximity in a terrifying situation and then repeating the identification to law enforcement officers, prosecutors, jurors and other parties to a criminal prosecution are tasks that the brain really simply isn't very good at. Thompson shouldn't be condemned; for that matter, ironically, the judicial system that did the best it could with the tools it had and still managed to deprive Cotton of nearly eleven years of his life can't really be condemned, either. The whole thing is a tragedy and a lesson in our own limitations, not an excuse for some kind of sanctimonious finger-pointing.

It is well within the realm of possibility that Dylan Farrow is recounting something that really did happen to her in an attic in Connecticut; but it's just as within the realm of things-that-have-happened-before-and-could-happen-again that a child immersed in an environment in which her father was castigated as a villain and a predator, her mother cast as a victim, and in which she was asked to repeat and clarify and relive an alleged assault came to accept that assault as a set of facts she really experienced. That it's as real to her as if it had happened, regardless of whether it did happen.

Lest someone draw a stupid conclusion from the foregoing paragraph: the second possibilitywouldn't make Dylan Farrow "sick" or "deluded" or "crazy", it would make her normal. Her brain would be operating within normal operating parameters, doing the stupid things brains do.

Do I know what really happened? No more than you do.**

*While I understand the physical attraction a nineteen-year-old might have for a man creeping up on sixty (Allen was fifty-seven), I have no idea what they'd talk about when the lights are on. I already have a difficult time understanding people half my age, and I'm merely in my forties. Add in the fact that he was his girlfriend's mother's boyfriend, and the whole thing strikes me as a bit icky, notwithstanding my attempts not to judge the consensual relationships of adults; the vaguely paternal status of "mom's boyfriend" indeed strikes me as the kind of thing that where there's a power imbalance that makes consent a dubious proposition. That said, they've been married close to seventeen years now. Still, it does smell a bit dodgy to me, personally, y'know?

**Admittedly, I do know something else: I know that probable cause is an extremely low burden for a prosecutor to satisfy--as the saying goes, a good prosecutor could indict a ham sandwich--and that a district attorney saying he has probable cause to indict a suspect for an extremely serious sex offense but is declining to do so is really, really odd. If he has probable cause, cooperative witnesses, and a possible child molester on the loose--all of which Litchfield County DA Frank Maco seemingly claims to have had--then a far more typical practice in my own experience would be to indict the hell out of the suspect, and if you're concerned about the victim's sensitivity, offer a tough but fair plea that gives the defendant plenty to lose if he goes through with a trial.

Indeed, that's more or less what Los Angeles County DAs did in the Roman Polanski case: the victim and her family were cooperative but expressed through their lawyer that they would simply prefer an acknowledgement of guilt and respect for his victim's privacy over the rigors of a trial and probable incarceration for the defendant, the evidence against Polanski was compelling (and certainly exceeded the standards needed to indict Polanski--which LA County prosecutors did), and the initial plea offer and sentencing recommendations were merciful and seem fair under the circumstances (the way everything went to hell at the eleventh hour notwithstanding).

Frankly, it's the prosecutor's puzzling and incoherent statements about the case that are the source of most of my doubt. If you have PC, indict, unless you have a really compelling reason not to. Compelling reasons might include the difficulty of proving the case beyond a reasonable doubt, but that would tell you a great deal right there: I am speculating in an effort to understand, but if Dylan Farrow's credibility was questionable in the immediate aftermath of the alleged events, if there was a dearth of corroborating evidence, or if there was perhaps even an issue of possible witness tampering by Mia Farrow, those causes for doubt grow stronger, not weaker after twenty-something years.

One other relevant contextual matter: in the late 1980s and early 1990s, when the assault on Dylan Farrow allegedly occurred, it's not as if American prosecutors were gun-shy about pressing child sexual abuse cases where the credibility of extremely young witnesses was questionable and corroborating evidence scant: in fact, there was a wave of daycare prosecutions across the country sufficient to merit its own Wikipedia entry. Prosecutors across the country appeared to have remarkably little difficulty convincing Grand Juries that children don't lie and wouldn't make up a story about sexual abuse if it wasn't true, and the sole difficulty in finding an expert witness to testify about the veracity of child witnesses and the efficacy of therapy in bringing out repressed memories was merely one of opening an office window at the courthouse and throwing a wadded-up piece of paper at an expert to get his or her attention. And judges weren't especially reliable gatekeepers of admissibility, keeping pseudoscientific testimony from self-anointed "experts" out of jurors' ears.

In short, if Frank Maco didn't think he could prosecute Woody Allen, I have to assume it was a really, really shitty case for the State Of Connecticut, regardless of Maco's poor--and subsequently sanctioned by the state Bar--decision to talk through both sides of his mouth about it.

8
comments:

I don't know. The fact that a prosecutor felt he couldn't get to beyond a reasonable doubt does not, to me, suggest that it's impossible to have a good faith belief about what went on. I mean, the prosecutor couldn't get to reasonable doubt on O.J. Simpson, but a civil jury had no problem deciding that it was more likely than not that he had caused their deaths anyway. I don't actually think the public is required to reserve judgment in a case just because, as a legal matter, the state is. The public doesn't put people in prison or put them to death. It does impose lesser penalties, such as shaming, ostracism, and perhaps negative career effects (though that doesn't seem to have happened to Allen). There should be some threshold for public condemnation, but I'm in no way prepared to put that threshold at the same level as the one we use to bring down the power of the state.

And I think maybe the Ronald Cotton case is inapposite, because (at least according to the Innocence Project writeup) the assailant was a stranger to the victim. I think that's a very different case from being assaulted by your mom's boyfriend -- especially if, as Farrow claims, it wasn't just one incident, and especially because that particular scenario is depressingly common.

Now, maybe a more apropos comparison is the Satanist daycare hysteria of the 1980s. But in that case, there was apparently a lot of tampering with the young witnesses, suggesting narratives to them and so on. It's certainly possible that that happened here -- but is there any evidence that it did?

I guess my concern is that there be space for victims to be heard. I completely agree that the brain is a faulty recording device. But for many crimes the victim is the only witness, and there may not be forensic evidence -- especially if, as is the case for many victims of abuse, it takes a long, long time for them to work up the courage to speak out. It may be that as a legal matter we want to be abundantly cautious, and it may be a sad reality that many victims don't get justice (assuming you believe locking people up creates justice) because one person's testimony, without more, simply is not enough to convict. But I don't think we need to compound that hurt by effectively creating a presumption against the validity of victim testimony in the court of public opinion. For myself, at least, I am willing to apply a presumption that runs the other way, absent reasonable evidence that the victim's story is incorrect.

Eh -- thinking about this again, I think my last sentence might be too strong. Let me put it this way: I think, the Men's Rights Activists' hysteria aside, the social cost of accusing someone of rape or molestation is so high that I tend to believe the accuser as an initial matter. However, there could be a lot of factors that strengthen or weaken that mild presumption. E.g.,

Strengthen:

- There are other accusers, or there is other evidence that the accused tends to behave this way. (We can argue, I suppose, whether Allen's movies about wanting to bang younger women, and his actual affair with and subsequent marriage to his girlfriend's MUCH younger daughter, add credibility to the idea that he might have a thing for prepubescent girls. I suspect they do.)- The accuser is likely to experience a lot of social blowback for pointing the finger. (This is especially the case when the accused is a beloved celebrity, and also especially true when the accused is a powerful man. Would you want to be Monica Lewinsky?)- The story follows a familiar pattern of human behavior. (Stepfathers/boyfriends molesting kids is horrifyingly common.)

Weaken:

- The story is preposterous, or at least highly unlikely. (It would take a truly staggering amount of evidence, for example, for me to believe that Satanists are running daycares. YMMV.)- It can be credibly argued that the accuser has some material interest in fabricating the charge. (This is perhaps the strongest argument re: Dylan Farrow. Woody hurt her mom and tore her family apart, so she wants revenge. I dunno. My gut doesn't buy it. But who knows what kind of weird psychological shit living in that home would have exposed you to? Maybe....)

If I were the prosecutor, I wouldn't feel prepared to go to a jury, especially because the legal presumption runs toward innocence. But as a dad, would I feel comfortable letting Woody Allen babysit my daughter? Mmmm. Prolly not.

I think a crucial point--and a major reason to feel sympathy for Dylan Farrow regardless of what did or didn't happen--is that she doesn't need a "material interest" in the charge. In fact, this is one of the most important misconceptions about false testimony in criminal cases: material interest might be a motive for deliberately lying, but it's not a necessary motive, nor is it a factor at all in situations where a witness isn't deliberately lying, or even "lying" in a conventional sense, at all.

Human beings--and children especially--don't need reasons to fabricate something. Imagination is an inherent part of how the brain works to begin with, and children are particularly natural at inventing stories. (It's also very relevant that a person, and a child especially, might fabricate a story he doesn't believe or expect anyone to take literally, and may be astonished or embarrassed when a listener takes it at face value.)

Nor does a motive, if there is one, have to be obvious, conscious, or meaningful to a third party. E.g. simply having a particular version of a story positively reinforced may be sufficient for the teller to repeat it. A teller may even have motive not to repeat the story, and yet repeat it anyway because of some kind of internal or external psychological pressure and even come to believe it in some sense (c.f. false confession cases). Negative reinforcement can also play a role; e.g. many a witness has doubled down on a fiction because they were believed there would be negative consequences for recanting (even if negative consequences were expressly denied).

It is possible--though this may not be what happened--that Dylan Farrow invented a story with no motive at all, a story that was reinforced and expanded as interactions with Mia Farrow, other family members, doctors, lawyers and others created a perception--valid to the child's perception, even if not to a third party--that one version brought sympathy, attention, a kind of (for want of a better word) approval from an angry mother looking to solidify her anger, etc., and fear that a reversal of the emerging story would result in all the punishments we promise our children for telling lies (even as Mia Farrow, well-intentioned and not meaning to help her daughter fabricate accusations, promised no such punishment would ensue--every child has heard "fibs" like "This hurts me more than it hurts you" and "I'm punishing you for your own good" and called "bullshit" on it without even knowing the word.

As for the prosecution: personally, it remains the dog that didn't bark. You're absolutely correct that absence of evidence isn't evidence of absence, and that the failure to indict isn't proof nothing happened at all. Yet it strikes me as damnably odd.

The prosecution of O.J. Simpson only illustrates my point, actually: the prosecution thought they had a strong case (and they did) and weren't intimidated by the defendant's ability to marshal a strong defense team, expert witnesses, and celebrity. And they sought and received an indictment, which is closer to the burden of proof needed to prevail in a civil suit (as Simpson's victims' families did) than it is to the burden of proof the state needs to prevail in a prosecution. That is, it would be one thing if the state indicted Woody Allen and failed to win at trial, but a somewhat different thing if they didn't indict him at all.

And the question of why they thought their trial case was so weak--if that's what they thought--is what raises questions about how we should evaluate the available evidence against Allen.

I think there's a strong point to be made that being sympathetic for an alleged victim doesn't mean uncritically taking up their banner (or that of the accused). I think one thing I can say with no doubt at all is that Dylan Farrow was victimized: I'm simply unsure as to whether she was victimized by Woody Allen or (perhaps unintentionally) by Mia Farrow. She has without a doubt lived for two decades with a strong belief that Woody Allen did something he may or may not have actually done: it is real to her, and that ought to provoke compassion.

The prompt for the post, indeed, was a news item about one of my literary heroes tweeting something extremely stupid and insensitive about the whole thing, something he quickly regretted and I think has deleted and apologized for. And I'm not going to be terribly harsh on him because I think he responded to something on a gut level and didn't do a brain-check before his thumb twiddled out the message from his gut; we all do that kind of dumb shit and should feel bad about it and try not to do it, but at least he didn't double down on it and had the decency to let his heart and brain retract the sentiments of his belly. That led to reading the piece that sourced the dumb quote, and gave me something to gel my recent thoughts around: that truth is, indeed, to some extent a movable thing, and that the tweet from my hero and the post from Mr. Bady were both quite wrong in incomparable and different ways.

I suppose my hero's tweet ought to be the "Dumber Quote Of The Day", but he's retracted it, so he gave himself a kind of do-over.

Okay, but I'd really like to push you on this -- I hope without being a dick about it. Granting that the brain frequently falsifies testimony (didn't Nietzsche say that "Of all liars, the smoothest and most convincing is memory"?), how do we take account of that without going to the place that I think it's all too easy to get to -- the place that our society used to default to in rape (and molestation, sexual assault, and sexual harassment) cases? To wit:

"You imagined it."

"You're hysterical."

"He didn't mean it like that."

"You must have done something. It can't have happened like you say it did. That man is a good man."

How do we take account of the flaws in the human organism without defaulting to a position of telling women and girls (and sometimes men and boys, who as rape victims end up being feminized by the society) that their perceptions and their experiences are just a lot of silly feelings, having nothing to do with serious, objective truth? How do we encourage women to come out and talk about this stuff and change our perceptions if what they hear when they finally work up the courage to talk is your brain is lying to you?

I'm not trying to give you shit. I'm genuinely trying to work that out.

I'm not trying to be flip when I say the answer is, "We just stop doing that."

I'm in a profession where I hear all kinds of stories--not just stories about alleged sex offenses, but all kinds of stories in general. And my experience is that telling someone, "That isn't what happened to you," is almost always the dead-wrong approach. Sometimes it's inevitable and there's no way around it. But generally a better approach is a sympathetic agnosticism, if you can manage it. Because some of the craziest stories you ever heard turn out to be true, and some of the most plausible explanations you ever heard turn out to be flat-out, knowing deceptions. And at the starting point of any knowledge, you probably have no inkling.

(I don't always live up to my ideal, by the way.)

There is a risk of giving offense when you take this tack, because people often want ratification. Almost always, in fact. And ratification is a dangerous gift to offer unless you're just as certain as they are.

Here's another reason for sympathetic, open agnosticism: all of the statements you mention are offensive not just because they label someone, but also because they make a statement of truth that can't necessarily be backed up. "He didn't mean it like that"--no? You know this to be truer than her perception because...? You've not only perhaps libeled someone to their face, insulting and disparaging and wounding them--all capital moral offenses--but you've staked a claim to knowledge you don't have. And specific knowledge: what did somebody imagine? That an event occurred at all, or that X was the perpetrator? That somebody was the victim of a physical assault, or that they were the victim of a psychological one? If one indeed marshals all the evidence and concludes an alleged victim is delusional, surely the correct response is to figure out a path towards healing, not to dismiss with casual cruelty.

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R. Eric VanNewkirk is sometimes a writer, occasionally a photographer, used to play guitar privately-but-seriously, an attorney by trade. Always freezes up when tasked to write something for a profile box. Progressive, opinionated, obnoxious. Drinks pricey tequila. Loves his cat. Strange sense of humor. Nerd, geek. Gregarious yet painfully shy. Reads a good bit. Doesn't watch much TV. Gets most of his news online. Has never been outside the solar system. An atheist, unless dabbling in Ninkasi worship counts for something. Doesn't know how to finish this box.